Biden Should Keep It at Nine

By Aaron Shuchman '21

On a historical and systemic level, court packing is a dangerous proposition (Photo Credit: Supreme Court)

The Supreme Court has had nine members, eight Associate Justices and one Chief Justice since 1869, although the Constitution doesn’t dictate a set number of justices, and the number has changed over the years. Despite the long-standing tradition of a Supreme Court composed of nine members, Democratic Senators and officials, such as Sen. Ed Markey (D-MA), are encouraging former Vice President Joe Biden to “pack” the Supreme Court with liberal justices if he is elected on November 3rd and the Democratic Party regains control of the United States Senate. This unprecedented, vengeful act would be in response to the Republican Party’s alleged “theft” of a seat in 2016, later filled by President Donald Trump’s appointee Neil Gorsuch, and Trump’s nomination of Amy Coney Barrett to fill the late Justice Ruth Bader Ginsburg’s seat. Despite what the far left of the Democratic Party wants, packing the Supreme Court would do serious, lasting damage to our democratic system and permanently damage the nation’s highest court.

The Democratic Party and its members in both houses of Congress believe that President Trump’s two confirmed nominees to the Supreme Court, Justices Neil Gorsuch and Brett Kavanaugh, are “illegitimate,” and that Amy Coney Barrett’s nomination is similarly illegitimate. A number of liberals in academia have argued that the Democrats’ packing of the court would simply be in response to these illegitimate, stolen nominations put forward by a Republican president and confirmed by a Republican Senate. The Democratic Party views the Supreme Court not only as an institution that has been stolen by the Republican party but an institution that is an obstacle to their goals and legislative priorities. Democratic Party officials have long sounded the alarm that a conservative majority on the court could overturn Roe v. Wade, the landmark decision that legalized pre-viability abortion, overturn the Affordable Care Act, and roll back many of the regulations that have been championed by Democratic politicians. This is not the first time in American history that the president––or potential president, in Joe Biden’s case––has disagreed with the court’s rulings on important issues. President Franklin Roosevelt was incensed by the Supreme Court’s rejection of a number of his New Deal policies, and thus conspired to pack the court with nominees favorable to upholding his policies. However, Congress, the existing members of the Supreme Court, and the American people resoundingly rejected FDR’s plan, recognizing it as the undemocratic power grab that it clearly was. Supreme Court justices serve constitutionally mandated lifetime terms, and even though the party with executive and congressional control may not like the court’s makeup or the rulings it hands down, they should respect the history and impartiality of the Supreme Court and not fill it with people sympathetic to their ideology out of a vengeful desire to counteract the “stolen seats” filled by a president they hate. Doing so would permanently damage the legitimacy of the Supreme Court and merely make it an extension of the legislative branch.

On a historical and systemic level, court packing is a dangerous proposition. Former Vice President Joe Biden getting behind this proposal would be an even more dangerous electoral and political mistake. Neither Biden nor his running mate, Sen. Kamala Harris (D-CA), has given a clear indication of whether or not they would pack the court if they win the election, with Biden even stating that the American people would learn his position “after the election.” Biden answered in a similar fashion when asked whether he would pack the court during a debate with Trump, and Harris similarly dodged the question in the vice presidential debate with Vice President Mike Pence. Not only is it incredibly dishonest to tell the American people that they need to elect him to learn his position on a critical issue, but it only gives the president and the Republican Party more ammunition to decry Biden as part of the “radical left.” Every moment that he fails to declare a position on the subject enables Trump and his allies the ability to tie Biden to more radical proposals like abolishing the legislative filibuster. These proposals do not have much support among the American public, and any lack of clarity regarding Biden’s position on court packing only makes him appear like he supports it. Biden packing the court would not only be historically and systemically wrong in the context of our democratic system, but politically misguided, opening his party up to backlash in future elections and destroying his ability to pass any of his legislative priorities.